A recent South Carolina Supreme Court ruling has revealed a gaping hole in the state’s Freedom of Information Act that lets public bodies in the state conduct government meetings without even publishing an agenda. If any government boards or councils were to conduct business in such a way, it would completely shut residents out of the process and would violate the spirit of open government.

The flaw was revealed when Saluda County Council was challenged for making an amendment to a meeting agenda during the meeting. The resulting Circuit Court decision, that ultimately was upheld by the Supreme Court, ruled that the state law does not prohibit in-meeting amendments to agendas — in fact it doesn’t even address the idea of amending a meeting agenda. The court took its ruling a step further by ruling that the language in South Carolina’s FOIA that says “agendas, if any” must be published means that government bodies are not even required to publish an agenda of a regular meeting.

The logistics of an agenda-less meeting would be a nightmare. First and most importantly, citizens seeking to do business — or even be aware of business — before a government body would have no way of knowing when or if the item they are concerned about would be discussed. Second, members of a government board can in no way conduct an effective meeting without an agenda. It seems very clear that for government to be effective at all, an agenda must exist.

The law, as it is written, makes a distinction between regularly scheduled meetings and “called, special and emergency” meetings. For the latter class of meetings, the law explicitly says an agenda must be posted. For the former class, it at the very least implies with its puzzling language that an agenda is not necessary.

The appeals court that overturned the original ruling logically inferred that the “if any” language meant that an agenda would not exist if there was no business for the council or board to act upon. The Supreme Court disagreed, saying such an interpretation was outside the court’s purview and amounted to legislating.

The root problem is that South Carolina lawmakers wrote a bad law. They made a distinction between regular meetings and other meetings that was wholly unnecessary. They also inserted a phrase that is at best ambiguous and at worst gives local governments a trap door to avoid giving the public any notice whatsoever of the business they will be conducting.

Residents depend on access to public meetings to hold their governments accountable. Although regular business meetings may hear the same sorts of general issues from month to month, the precise nature of that general business needs to be the subject of a published agenda if residents and taxpayers are to be able to participate in any meaningful way. Surely the General Assembly intended to say that an agenda must be published for every meeting if there is business for that meeting.

Bill Rogers, the executive director of the South Carolina Press Association aptly summed up the effects of this broken law: “To have meetings without an agenda and to change them during the meeting makes a mockery out of the democratic process.”

Indeed. No matter why this loophole exists, it needs to be closed. And while lawmakers are at it, they need to set reasonable requirements for government bodies to follow when they are amending agendas. Again, unless there are urgent circumstances, a government body should not be able to add an item to an agenda without adequate notice. Residents who want to be heard on a specific issue could be shut out of the discussion if that issue is added to an agenda and then acted upon during the same meeting.

Some state legislators are vowing to fix the law in the upcoming session. That needs to be done.

Sen. Larry Martin recently told Greenville News reporter Rudolph Bell that he will review the ruling with an eye toward revising it in a way that makes it as open as possible. Sen. Kevin Bryant got to the crux of the issue, too, when he told the Anderson Independent-Mail, “Any time the government is making any type of decision, the public needs to know ahead of time so that it can be engaged.” He, too, predicted lawmakers will fix the law next year.

In the meantime, local government bodies need to do the right thing and follow the spirit of the law. Governments are accountable to the people, and the people cannot hold them accountable if they do not have a reasonable chance of knowing and understanding what issues are before those bodies. The easiest way to ensure they have that knowledge is by publishing a complete agenda at least 24 hours before a body meets, regardless of whether the law currently requires such notice.